NYSTLA ad 3.5x4.5 2011 2/15/11 2:20 PM Page 1


will be used to summarize or support them, (4) the witness’ qualifications (including a list of all publications authored in the last 10 years), (5) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition, and (6) a statement of the compensation they will be paid for their study and testimony in the case. Fed, R. Civ. P. 26(a)(2)(B)(i) – (vi). As will be discussed infra, the level of detail required by


the federal rules in a “retained expert” report far exceeds that which is required by the Maryland rules in similar cases. Te second type of expert that can be used in a nursing


home case in federal court is a “non-retained expert.” Tis expert is not contracted, retained, or paid for his/her services. Tis expert is called specifically to render “expert testimony” based on his/her eyewitness observations and thought processes within the confines of their expertise. An example of this kind of non-retained expert would be a treating physician. A treating physician can be called as an expert witness without filing a detailed report as long as his or her testimony is restricted to his/her eyewitness observations and thought processes concerning the victim within the confines of their rendering of treatment to the victim. Anything beyond this scope creates a scenario which may result in a hybrid expert witness or even an inadvertently retained expert witness, which can then require different reports and disclosures. Te testimony of a non-retained expert is essentially used to factually bolster the testimony of the retained expert. So, while non-retained expert testimony can be helpful in supporting the position of a party, barring the scenario of case involving res ipsa loquitur, it typically cannot stand on its own or establish a prima facie case. Te federal rules have simpler requirements for an expert disclosure where the expert has not been retained. Tis includes the identification of the subject matter which he/ she will present evidence and a general summary of their facts and opinions. Fed. R. Civ. P. 26(a)(2)(C). Te third type of expert that can be used in a nursing home


case in federal court is a “hybrid expert.” Tis expert’s identity must be disclosed to all parties and the court pursuant to Fed. R. Civ. P. 26(a)(2)(A), but the hybrid expert is not subject to the 26(a)(2)(B) report and disclosure requirement. Te most common example of a hybrid expert is a treating physician whose testimony goes beyond eyewitness observations and includes an opinion such as causation. Tis can be a common scenario as treating physicians will often include opinions regarding causation when determining what care to render to the victim during the ordinary course of treatment. However, please note that it is possible for an expert to have some opinions which are hybrid, and also other opinions which would be subject to the 26(a)(2)(B) disclosure requirements. Te determining factor is not who the expert is, but what the


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expert used in forming his/her opinion. If the expert’s opinion testimony is based solely on the treatment they rendered, and observations they made during the ordinary course of treatment, then they are categorized as a hybrid expert and will not be subjected to the more elaborate 26(a)(2)(B) reporting requirements. However, if he/she forms opinions and renders testimony that is based on materials which were obtained outside the course of their regular practice and treatment, then (irrespective of the absence of any contract or payment) that expert can be considered a retained expert. Tis is because they are now rendering an opinion that is advancing the case of the party on whose behalf they are testifying. Sullivan v. Glock, Inc., 175 F.R.D. 497 (1997). Hybrid experts can and should be disclosed, listed in answers to interrogatories and they can be deposed. But generally, if they are a true hybrid expert, they are not subject to the 26(a)(2)(B) reporting requirements. Be careful when making the determination as to what category of expert you are using in your federal court case. Make sure that you are well acquainted with not just the physician’s opinions, but also the source of those opinions, so that you can fully preserve his/her testimony. Te timing of all expert disclosures and report filings are


usually set forth in the court’s scheduling order. Failure to disclose and file in a timely manner, in the absence of receiving leave of


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